Alaska Supreme Court rejects Native hiring preference law

Posted: Sunday, May 18, 2003

ANCHORAGE (AP) A North Slope Borough law giving Native Americans preference for borough jobs violates the Alaska Constitution, the state Supreme Court said in an opinion released Friday.

Justices wrote their opinion in response to a question posed by a three-judge panel from the 9th U.S. Circuit Court of Appeals, which is considering the legality of the ordinance.

Alaska's high court concluded that the borough lacked a legitimate governmental interest to enact a hiring preference favoring one class of citizens at the expense of others. Therefore, the court decided, the ordinance violated the Alaska Constitution's guarantee of equal protection.

''The court ruled that that government can't discriminate on the basis of national origin or race in hiring people,'' said Ken Covell, a Fairbanks attorney representing plaintiffs denied jobs.

Justices said Native Americans have no unique legal status under borough law as they might under federal law, and that neither state nor borough government has guardianship powers to treat Native Americans as wards. Justices determined that the ordinance favored one class of Alaskans over another.

The state Constitution provides that ''all persons are equal and entitled to equal rights, opportunities, and protection under the law.'' It also prohibits discrimination based on race or national origin.

The North Slope Borough Assembly passed the hiring preference ordinance in 1997. Assembly members claimed it was warranted because Inupiat Eskimos had a higher unemployment rate and earned less than non-Natives.

Inupiat Eskimos made up about three-quarters of the borough population. The borough and the North Slope School District accounted for more than 60 percent of the region's non-oil field jobs.

Robert Malabed sued in U.S. District Court in 1998, claiming he was passed over for a $16.80-per-hour job as a Barrow security guard. Malabed, of Filipino descent, worked for three years as a temporary guard. He claimed the permanent job was given to a less-qualified Native American. In the lawsuit, he asked for the job plus back wages, Covell said. He now lives in Anchorage.

Two other non-Natives, Morris David Welch and Charles Michael Emerson, filed lawsuits later. They were consolidated into a single case heard in Fairbanks.

The borough contended that under federal law, a Native-hire preference was allowed for business or other enterprises on or near Indian reservations. Attorney David Crosby of Juneau said borough land qualified as a reservation for the purpose because village governments on the North Slope have federally recognized tribe status.

U.S. District Court Judge John Sedwick disagreed. He said the U.S. Supreme Court made it clear in the 1998 Venetie case that Indian country does not exist in Alaska.

Sedwick also ruled that the Native-hire ordinance violated the equal protection clause of the U.S. Constitution because the borough presented no evidence that Natives suffered local hiring discrimination based on their race.

The borough appealed Sedwick's decision to the 9th U.S. Circuit Court of Appeals, and those judges asked the Alaska Supreme Court for guidance in state law.

The federal appeals panel said its decision could hinge on whether the Native-hire preference is permitted under Alaska law.

Four of the five justices of the state court supported the majority opinion. Justice Warren Matthews wrote a concurring opinion.

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